The ICC-ASP Independent Expert Review: Scrutinizing the past / proposing the future

Inherent in the structure of any international court or tribunal is the dual nature of the institution: the ICC is both a judicial entity (ICC/Court) and an international organisation (ICC/IO). As a judicial entity, the Court must benefit from judicial independence. As an international organisation, States Parties reasonably expect to be able to guide and shape the institution. Contradictions can arise between the two attributes of the ICC, and in practice such differences have led to tension between the ICC and the ASP. Whereas the dual nature of the ICC cannot be changed, employing this distinction can improve the clarity of reporting lines and improve cooperation.

Independent Expert Review of the International Criminal Court and the Rome Statute System, Final Report (IER), 30 September 2020, para. 26 (internal citations omitted).

Since we are starting a new year, it may be good to reflect on the 2020 Independent Expert Review (IER) of the International Criminal Court (ICC) and the Rome Statute System, commissioned by the Assembly of States Parties (ASP):

with a view to making concrete, achievable and actionable recommendations aimed at enhancing the performance, efficiency and effectiveness of the Court and the Rome Statute system as a whole, taking full account of the working languages of the Court, and submit those to the Assembly and the Court for consideration.1 Review of the International Criminal Court and the Rome Statute System, ICC-ASP/18/Res.7 (2019), para. 6.

Hemingwayesque in prose (modestly adorned short, plain sentences), Tolstoyesque in length (War and Peace in size and discordance), and Trumanesque in bluntness (unvarnished, curt, straight-talk), the final report of IER of the ICC is a dark, disenchanting, dispiriting read. But a must-read, nonetheless. Anyone currently working or hoping to work at the ICC, anyone working in any of the international(ized) criminal courts or tribunals, and anyone involved in establishing or aspiring to establish any future such courts, would be well served to carefully review and reflect on this report. Continue reading “The ICC-ASP Independent Expert Review: Scrutinizing the past / proposing the future”

Footnotes[+]

Share

JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 3)

It is with great relief to observe that the Pre-Trial Chamber reverses the prior order of the Co-Investigative Judges of 8 December 2009 that held JCE III applicable in relation to international crimes before the ECCC…. By the same token, the Pre-Trial Chamber declares JCE I and JCE II applicable before the court in regard to international crimes…. In doing so, the court omits to scrutinize the necessity to give these recognized forms of liability under international criminal law and in particular universal state practice law new labels.

Judge Wolfgang Schomburg1  Jurisprudence on JCE – Revisiting a Never Ending Story 

 

Just as in the Wizard of Oz, when Dorothy discovers there is no wizard behind the curtain, the Pre-Trial Chamber Judges of the Extraordinary Chambers in the Courts of Cambodia (ECCC) – rebuffing the wizardry behind the curtain by thoroughly analyzing the law and jurisprudence relied on by the Tadić Appeals Chamber (and parroted by successive chambers at the ad hoc tribunals) – discovered that JCE III, founded on unsupportive and unpersuasive legal authority, did not enjoy customary international law (CIL) status. Continue reading “JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 3)”

Share

JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 2)

The writer has referred to an error of the Tribunal, to which he was a party; it concerns the question whether joint criminal enterprise was customary international law insofar as it permits of a conviction without proof of intent…. [T]wo rival theories – joint criminal enterprise and co-perpetratorship – hold sway in major parts of the world, but not generally; neither is therefore entitled to be regarded as customary international law.

Judge Mohamed Shahabuddeen1 Mohamed Shahabuddeen, Judicial Creativity and Joint Criminal Enterprisein Judicial Creativity at the International Criminal Tribunals 202-03 (Shane Darcy & Joseph Powderly, eds., Oxford University Press, 2010). 

Judge Mohamed Shahabuddeen presided over the Tadić Appeals Chamber,2 Prosecutor v. Tadić, IT-94-1-A, Judgement, 15 July 1999, paras. 185-234 (Tadić Appeals Judgement). the progenitor of one of the most controversial legal issues at the ad hoc tribunals (the ICTY and ICTR) and elsewhere3Much has been written on the modes of liability and JCE. In particular, I recommend Gideon Boas, James Bischoff, and Natalie Ried, Forms of Responsibility in International Criminal Law: International Criminal Law Practitioner Library Series, (Cambridge University Press 2007); Ciara Damgaard, The Joint Criminal Enterprise Doctrine: A “Monster Theory of Liability” or a Legitimate and Satisfactory Tool in the Prosecution of the Perpetrators of Core International Crimes?, in Individual Criminal Responsibility For Core International Crimes 129 (Springer, 2008). See also William A. Schabas, Mens Rea and the International Criminal Tribunal for the Former Yugoslavia, 37 New England L. Rev. 1015 (2002); For more on my point of view, see Joint Criminal Enterprise at The ECCC: A critical analysis of two divergent commentaries on the Pre-Trial Chamber’s Decision against the application of JCE, available at http://michaelgkarnavas.net/files/JCE_at_the_ECCC_MGKarnavas.pdf. – the individual mode of criminal liability known as joint criminal enterprise (JCE), claimed to be a form of “commission” reflected in customary international law (CIL).4 The moniker joint criminal enterprise as an individual mode of liability has been variously and interchangeably labeled at the ICTY as “common criminal plan,” “common criminal purpose,” “common design or purpose,” “common criminal design,” “common purpose,” “common design,” or “common concerted design.” The common purpose has been more generally described to form part of a “criminal enterprise,” a “common enterprise,” and a “joint criminal enterprise.” See Prosecutor v. Brđanin and Talić, IT-99-36-PT, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001, para. 24. Continue reading “JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 2)”

Footnotes[+]

Share

JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 1)

This common purpose involved the commission of the crimes of persecution, imprisonment, arbitrary detention, other inhumane acts, cruel treatment, torture, murder and enforced disappearance. Its existence and contours are indicated by: (i) early public statements of the [Kosovo Liberation Army (KLA)], preceding the period of the charges; (ii) communiqués and political declarations of the KLA General Staff, public statements of KLA General Staff members, as well as other KLA publications, during the period of the charges; (iii) regulations, structures, directions and orders drafted, issued or approved by the Suspects; (iv) the pattern of crimes committed at the locations indicated under Counts 1-10; and the personal participation of the Suspects and other senior KLA/[Provisional Government of Kosovo (PGoK)] members in the commission of the crimes.

Prosecutor v. Thaçi et al., KSC-BC-2020-06/F00026/RED, Public Redacted Version of Decision on the Confirmation of the Indictment Against Hashim Thaçi, Kadri Veseli, Rexhep Selimi and Jakup Krasniqi, 26 October 2020 (“Confirmation Decision”), para. 454 (footnotes omitted).

In the heavily redacted 235-page public decision issued by the Kosovo Specialist Chambers (KSC) on 30 November 2020 confirming its first Indictment, the Specialist Prosecutor’s Office (SPO) lays out a cascade of crimes. A four-year trial lies ahead. Continue reading “JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 1)”

Share

Book Review – Comparative Reasoning in International Courts and Tribunals

Comparative Reasoning in International Courts and Tribunals, by Daniel Peat, Cambridge University Press, 2019, 258 pages, € 29 (paperback).  Winner of the 2020 European Society of International Law Book Prize.

A word is not a crystal, transparent, and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.


Oliver Wendall Holmes, Towne v. Eisner, 245 US 418, 425 (1918)

Daniel Peat’s parting thoughts in Comparative Reasoning in International Courts and Tribunals are that if we are to “understand the complexity and contextuality that interpretation inevitably entails” in both international law and domestic law, we need to acknowledge the “mutability” that US Supreme Court Justice Holmes speaks of in Towne v. Eisner (p. 221). Put differently, when interpreting a word, a term, a rule, a law, a treaty, context matters. Any practitioner worth his salt knows this. So, what’s new? Continue reading “Book Review – Comparative Reasoning in International Courts and Tribunals”

Share

The Kosovo Specialist Chambers’ Rules of Procedure and Evidence: More of the Same Hybridity with Added Prosecutorial Transparency

The Kosovo Specialist Chambers’ Rules of Procedure and Evidence: More of the Same Hybridity with Added Prosecutorial Transparency, an article by Michael G. Karnavas, has been published in the International Criminal Law Review.

The Rules of Procedure and Evidence of the Kosovo Specialist Chambers incorporates procedural rules from Kosovo’s domestic legal system, innovative and useful modalities, procedural rules, practice directives, and lessons learned from the other international(ised) criminal tribunals. Based on a presentation given by Michael G. Karnavas on 22 June 2018 at Leiden University’s Grotius Centre Supranational Criminal Law Lecture Series — The Kosovo Specialist Chambers: Comparative Legal Perspectives — this article provides a defence perspective on some of the modalities found in the Rules of Procedure and Evidence. In the author’s opinion, some of the provisions on disclosure provide greater protections of fair trial rights for suspects and accused during the confirmation and pre-trial stages than the rules of other international(ised) criminal tribunals, while also maintaining the schizophrenic features found in these international(ised) jurisdictions — placing the burden of proof on the prosecution while granting the trial judges discretionary authority to engage in truth-seeking activities.

For an earlier discussion of the Kosovo Specialist Chambers, see Michael’s seven-part series:

Share

Reflections on the Cambodian Defenders 25 years later: from humble advocates to legal trailblazers   

Late Saturday night, July 13, 2019, NagaWorld Hotel ballroom, Phnom Penh, Cambodia. Tables full, food and libations flowing, laughter, music, Khmer traditional dancers, speeches, clinking of glasses, cake-cutting, idle chatter, happy faces, kind words. It’s the graduation party for the newly-minted lawyers having passed the last of their exams after finishing an intensive Bar course. As I look around, I wonder if any of these young Lawyers can fathom a Cambodia with virtually no lawyers, no Bar Association – or BAKC (Bar Association of the Kingdom of Cambodia) as it is known, when at best there were some trained human rights advocates working for NGOs, offering their services to indigent suspects and accused in some parts of Cambodia. Probably not. But yes, there was such a time, and it was not that long ago. Continue reading “Reflections on the Cambodian Defenders 25 years later: from humble advocates to legal trailblazers   “

Share

The ICC Appeals Chamber’s Judgment in the Jordan Referral: Oh! What a tangled web it weaves when first it practices to conceive

There is neither State practice nor opinio juris that would support the existence of Head of State immunity under customary international law vis-à-vis an international court. (para. 1)

Article 98(1) of the Statute does not itself stipulate, recognise or preserve any immunities. It is a procedural rule that determines how the Court is to proceed where any immunity exists such that it could stand in the way of a request for cooperation. (para. 5)

Resolution 1593 gives the Court power to exercise its jurisdiction over the situation in Darfur, Sudan, which it must exercise ‘in accordance with [the] Statute’. This includes article 27(2), which provides that immunities are not a bar to the exercise of jurisdiction. … Sudan cannot invoke Head of State immunity if a State Party is requested to arrest and surrender Mr Al-Bashir. … Accordingly, there was also no immunity that Jordan would have been required to ‘disregard’ by executing the Court’s arrest warrant. And there was no need for a waiver by Sudan of Head of State immunity. (para. 7)

Judgment in the Jordan Referral re Al-Bashir Appeal, 6 May 2019

Finally, the long-awaited International Criminal Court (ICC) Appeals Chamber Judgment on Head of State immunity arrived. Unsurprisingly, it contrives to bridge the disparate reasonings of the Pre-Trial Chambers’ decisions while, in no small measure, attempting to expand its international personality and jurisdictional reach. If the United States (US), Russia, and China did not get the Malawi memo – that by virtue of United Nations Security Council (SC) Resolution 1593 they endorse that Heads of States not party to the ICC Statute are not immune from ICC jurisdiction, then the Appeals Chamber’s Judgment in the Jordan Referral re Al-Bashir Appeal (Judgment) puts them on clear notice.

Some will rejoice; others (legal purists and sticklers for applying, as opposed to making, the law) will not. Based on the Judgment, Head of State immunity before international courts is virtually abolished. Continue reading “The ICC Appeals Chamber’s Judgment in the Jordan Referral: Oh! What a tangled web it weaves when first it practices to conceive”

Share

IRMCT’s lame excuse for inaction: Florence Hartmann gets away with falsely accusing Gen. Praljak’s Defence Counsel with murder

It’s known that it came in with the group that was present at the trial, because he couldn’t have had it in the prison, which casts suspicion on his defense team, or eventually someone from the Embassy; at any rate, someone who had access to Praljak before he entered the courtroom

Florence Hartmann, Express, 19 April 2019, p. 42

Florence Hartmann

Florence Hartmann is no stranger to controversy, to unethical behavior, to criminal activity.  At the apogee of her career at the International Criminal Tribunal for the former Yugoslavia (ICTY), she was the mouthpiece and spinmeister for the Office of the Prosecution (OTP), and in particular, Madam Carla Del Ponte, the then Prosecutor. Much to her surprise (hubris can be blinding) she was prosecuted by the very same office for which she worked. She crossed the line by disclosing classified information. Convicted, Hartmann was sentenced to pay a fine of €7,000.1  The imposition of that fine, payable in two installments, was affirmed by the Appeals Chamber of the ICTY on 19 July 2011.   Hartmann failed to pay the fine, despite several notices from the Registrar.  On 16 November 2011, the Appeals Chamber converted the fine to a term of imprisonment of seven (7) days.  An inexcusably lenient slap on the wrist for someone who failed to surrender to serve her sentence for over four (4) years.  Hartmann was finally arrested on 24 March 2016.  She was granted early release on 29 March 2016, having served five (5) days in custody.  Ironically, in light of her failure to pay the fine of €7,000, the Registrar found that she was able to remunerate counsel amounting to €59,094.50, and thus was ineligible for legal aid.  That decision was affirmed by the President of the Mechanism in the Decision of of 4 July 2016.

One would think that having fallen from grace and having paid for recklessly transgressing, she would be have learned her lesson, she would have learned to tread lightly, she would have learned to stay out of the limelight – which, in no small measure, got her into trouble in the first place. Continue reading “IRMCT’s lame excuse for inaction: Florence Hartmann gets away with falsely accusing Gen. Praljak’s Defence Counsel with murder”

Footnotes[+]

Share

Invoking the Interests of Justice: self-preservation or self-destruction

In summary, the Chamber believes that, notwithstanding the fact all the relevant requirements are met as regards both jurisdiction and admissibility, the current circumstances of the situation in Afghanistan are such as to make the prospects for a successful investigation and prosecution extremely limited. Accordingly, it is unlikely that pursuing an investigation would result in meeting the objectives listed by the victims favouring the investigation, or otherwise positively contributing to it. It is worth recalling that only victims of specific cases brought before the Court could ever have the opportunity of playing a meaningful role in as participants in the relevant proceedings; in the absence of any such cases, this meaningful role will never materialise in spite of the investigation having been authorised; victims’ expectations will not go beyond little more than aspirations. This, far from honouring the victims’ wishes and aspiration that justice be done, would result in creating frustration and possibly hostility vis-a-vis the Court and therefore negatively impact its very ability to pursue credibly the objectives it was created to serve.

Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan, 12 April 2019, para 96

Related imageBy now much has been written about the International Criminal Court (ICC) Pre-Trial Chamber’s (PTC) Decision on the Situation in the Islamic Republic of Afghanistan, in which it put the kibosh on the Office of the Prosecutor’s (OTP) efforts to investigate, among other things, crimes allegedly committed by US armed forces and the Central Intelligence Agency, including contractors and other persons under their effective control (see here and here for my earlier posts on the OTP’s efforts to pursue this situation). Invoking Article 53(1)(c) of the ICC Statute the PTC found:

Having determined that both the jurisdiction and the admissibility requirements are satisfied, it remains for the Chamber to determine, in accordance with article 53(1)(c) of the Statute, whether, taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice. (para 87) Continue reading “Invoking the Interests of Justice: self-preservation or self-destruction”

Share